1. Statutory goals. As the Congressional Research Service (CRS) materials state, the Clean Water Act (CWA) "declared as its objective the restoration and maintenance of the chemical, physical, and biological integrity of the Nation's waters. Two goals also were established: zero discharge of pollutants by 1985 and, as an interim goal and where possible, water quality that is fishable and swimmable by mid-1983."

Questions:

(A) What's the role of goals and objectives in a statute like the CWA?

(B) Are these the right goals and objectives?

(C) The dates for attainment of fishable, swimmable waters and zero discharge of pollutants have passed, and the goals have not been achieved. How should these goals be amended, if at all, in the face of that failure?

2. Regulation and its alternatives (the point/non-point source distinction). There is wide debate on the merits of regulation versus other policy tools to achieve environmental goals. The CWA often employs regulation to achieve its objectives, but it doesn't always. Its approach to "non-point source pollution" relies heavily on non-regulatory approaches (such as education or subsidies).

The Act divides sources of water pollution into two broad categories -- sources that qualify as "point sources" and those that do not. Point sources (e.g., a factory discharging into surface waters) are closely regulated under the federal Clean Water Act regime. Non-point sources (e.g., a farm generating polluted runoff) are not, even though these are thought to account for a substantial portion of the water pollution problems that exist today. State non-point source programs may, and typically do, rely on voluntary approaches (education, training) or subsidies (financial assistance) to address non-point source issues.

Questions:

(A) Why this difference in approach as between point and non-point sources?

(B) What barriers might there be to regulating non-point source pollution in the way point source discharges are regulated?

(C) What alternatives (or supplements) to regulation are likely to be effective in addressing non-point source problems? Can the goals of the Act be met without regulation of non-point sources?

3. Technology-based controls. A number of environmental statutes use technology-based limitations to achieve their goals. The CWA requires both publicly owned treatment works (POTWs) and industrial point source dischargers to meet technology-based limitations as well as any additional limitations necessary to meet water quality standards. A technology-based limitation imposes restrictions on what may be discharged that reflect the performance of a given level of pollution control technology (e.g., Best Practicable Control Technology). Technology-based limitations are designed to be uniform for sources within each industrial category or subcategory.

Questions:

(A) What are the strengths of the technology-based approach to discharge controls? What are its drawbacks?

4. Water quality standards. A number of environmental statutes also provide for ambient standards as the basis for regulation. The CWA requires States to set water quality standards for each water body (lake, stream segment) within their boundaries, subject to review and approval by EPA. These standards are then translated into controls on sources discharging into that water body. A third to a half of the waters of the U.S. do not meet all applicable water quality standards.

Questions:

(A) What are the strengths of water quality standards as a basis for regulation? What are their drawbacks?

(B) Are water quality standards more likely to achieve efficient regulation than technology-based approaches? Are they more likely to achieve cost-effective regulation? Innovation?

5. Basis for controls. Beyond the issue of what type of controls to use lies the question of the level of control selected. This question applies both to technology-based and water quality based controls.

Questions:

(A) For most pollutants, including all toxic pollutants, point source dischargers must now meet limitations based on best available technology economically achievable (BAT).

(1) To what degree would EPA be authorized to consider costs of implementation under this standard?

(2) Would the Agency be prevented from selecting a level of BAT for which the costs far exceeded the benefits to be achieved? Should it be?

(B) Relying on the goals of the Act, EPA has pressed states to adopt water quality standards that will support fishing and swimming in their waters wherever attainable. It does not allow states to consider the costs imposed by the standards except in very limited ways (e.g., if achieving the standards would cause "substantial and widespread economic and social impact"). Water quality standards on many lakes and streams have not been met.

(1) Is EPA's approach a reasonable interpretation of the Act? Are there other permissible interpretations that would allow more consideration to be given to costs?

(2) Would such interpretations be well-advised?

6. Issues of federalism. Many federal environmental statues raise the issue of the appropriate roles of federal, state and local governments. Under these statues, base levels of control are typically set by a federal agency. Although states may adopt controls that are more stringent than the federal levels, they may not impose less stringent controls. Many argue that this centralized approach is necessary to achieve the nation's environmental goals. Others argue that argue that on many issues decisionmaking at the state and local level would produce more efficient results and would also enhance democratic values.

Questions:

(A) As discussed above, states set water quality standards for their waters subject to federal rules about what those standards should contain.

(1) Should states and localities be given more latitude in setting water quality standards?

(2) Should distinctions in this regard be made between standards that apply to wholly intrastate waters and those that apply to waters shared with other states?

(B) Discharges by industrial facilities into POTWs are not considered discharges into the waters of the U.S. and therefore are not required to obtain discharge permits or meet the other requirements imposed on point source dischargers. However, these "indirect dischargers" are subject to pretreatment regulations promulgated by EPA; these regulations are enforceable by EPA directly against the discharger. Environmentalists have expressed concerns about the adequacy of these regulations, particularly as regards toxic pollutants. At the same time, states and localities argue that the federal government should not be dictating arrangements between a local POTW and its users, particularly where discharges from the POTW are not causing water quality problems or otherwise violating the POTW's permit.

(1) Is a federal presence necessary here?

(2) How should it be structured?

(C) Should control of non-point sources of pollution be left to the states, as it is now, or should EPA have the authority to dictate measures to be used or to take over administration of non-point source programs in problem states?

7. Wetlands. The wetlands program under the CWA raises many of the issues raised in previous questions.

The CWA prohibits discharges of dredged and fill materials in the waters of the U.S. without a permit. (CWA Sec. 301, 404) By regulation, the Corps of Engineers and EPA have defined waters of the United States broadly to include a substantial portion of the nation's wetlands. They define wetlands as areas that are wet enough often enough to "support a prevalence of vegetation typically adapted for life in saturated soil conditions." Wetlands are within the jurisdiction of the CWA, according to the regulations, if they "could affect interstate or foreign commerce" (the regulations enumerate examples). Administrative guidelines discourage issuance of permits for discharge of dredged and fill material where there are practicable alternatives to the project that would have less environmental impact on the aquatic ecosystem. Under general permits issued by the Corps, however, some projects (depending of type of activity, size and location of wetlands involved) may go forward without review. And some types of activity (e.g., normal farming activities) are statutorily exempt from permit requirements. Although a national "no net loss" policy has applied to wetlands for almost a decade (in both Republican and Democratic administrations), total acres of wetlands in the U.S. have continued to decline. The D.C. Circuit has recently held that the CWA requires permits only for activities that discharge dredged or fill materials into wetlands and not for other activities that drain, excavate, or otherwise destroy wetlands or their natural values.

Questions:

(A) What should be the goal of the "wetlands" program?

(B) Should the permit requirement be broadened to include draining and excavation as well as filling of wetlands?

(C) Should it be limited only to those wetlands that have significant wetlands values?

(D) Should greater use be made of statutory exemptions and general permits to ensure that full review is reserved only for important wetlands issues, or are these devices already overused?

(E) What about alternatives to regulation? (E.g., Swampbusters (to be described in class), acquisition)

(F) Why do we continue to lose wetlands, notwithstanding our national policy?

(G) What about mitigation as a way to reduce costs of wetlands protection? To reverse the net loss of wetlands?